Good intentions don’t necessarily make good laws

Scrutiny by experts is needed before passing legislation near impossible to enforce, says Brent Haywood

The recent vote to repeal the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 has shone the spotlight – again – on one of the Scottish Parliament’s less glorious attempts to do the right thing.

The Act was a well-intentioned bid to tackle sectarianism in Scotland, but in the words of MSP James Kelly who led the initiative to have it repealed, it was “a simplistic attempt to solve a complex problem”.

It was also a classic example of hastily-assembled, poorlydesigned law-making.

Let’s leave aside the political issues around sectarianism, freedom of speech and human rights. They’re all important issues which the Scottish Parliament is right to address, but they’re not the issue we’re looking at here.

What we’re talking about is the problem of legislation that’s arbitrary, difficult to enforce, or has unintended consequences.

With the Offensive Behaviour at Football Act legislation, a major weakness was the lack of clarity over the threshold for offensive behaviour. Police and the courts struggled to determine whether or not behaviour was offensive or hateful, and therefore how to apply the law.

In addition, the law was arbitrary – in theory, singing the more robustly-worded lines of Flower of Scotland might be deemed ‘atmospheric’ at a rugby match, and a criminal offence at a football match.

Another example of problematic law-making is the Land and Building Transaction Tax (or LBTT) which contributed to the slowing of the housing market in Scotland.

As a result, many families on the middle rungs of the property ladder are unable to move, and the expected tax revenues have not materialised. It’s not a human rights issue, but it’s still poor policy-making.

I should emphasise here that there’s much to praise in the work of the Scottish Parliament. In fact, the repeal of the Offensive Behaviour at Football Act is itself worthy of praise. A bad law was put under the microscope and repealed – with MSPS from all opposition parties coming together to do so. This shows democracy working.

There are also excellent examples of the Scottish Parliament blazing a trail (in the UK context) on issues it cares about, with good results for society. The smoking ban and levy on plastic bags are good examples of this.

On human trafficking too, the Scottish Parliament is working effectively with relevant stakeholders to tackle the international nature of modern slavery, and try to make a difference.

But when MSPS put themselves out there on issues from sectarianism to human rights (and equally when legislating on more mundane issues), they have to ensure they make good law.

This is easier said than done. Our lawmakers are human, and very often generalists; with public resources stretched thin, they’re less likely than ever to have specialists on their staff who can advise them objectively.

But that’s no excuse, and we need to do better.

First, we need more robust scrutiny of legislation before implementation – not just by interest groups, but by experts and legal professionals, who can spot technical weaknesses or difficulties with implementation.

This is happening in some instances. For example, the review of hate crime legislation by Lord Bracadale, a senior member of the judiciary, is supported by an experienced reference group charged with providing expert scrutiny and ensuring that recommendations are “robust, holistic and achievable”.

Secondly, expert input and scrutiny should not be sacrificed to political expediency. The input of experts like Lord Bracadale and his reference group is only worthwhile if their advice is incorporated into the resulting legislation.

Thirdly, good lawmaking comes from collaboration and – to borrow a phrase from a worthy organisation called Collaborative Scotland – respectful dialogue.

The original aspirations for the Scottish Parliament emphasised consensus and a less adversarial and partisan style of law-making than that seen at Westminster. Recent practice suggests this ambition has been diluted, and we need to do better.

The Scottish Parliament is certainly not the only legislature to rush through laws or deliver unintended consequences. Far from it.

But to be a grown-up democracy, a role model for other parliaments, we need to improve our law-making. it’s not just a question of keeping scottish lawyers happy, it’s about democracy and protecting the rights of individuals. This matters to all of us in Scotland. Brent Haywood is a dispute resolution and litigation partner with Lindsays